Updates for freelancers: Pandemic assistance and the PRO Act

Freelancers and Pandemic Assistance

The Freelance Committee wanted to make sure NASW members were aware of a couple federal COVID-19 relief programs you can access as freelancers. The freelance landscape can feel especially tenuous right now, but hopefully those who are eligible can find extra stability in the benefits below.

The first is called the Paycheck Protection Program (PPP), and it offers loans that can go toward salary and certain expenditures. These loans are forgivable under some conditions, and were forgiven for some of our members in the last round of PPP. If you're a solo freelancer or part of an LLC, you're eligible to apply. But the application period ends March 31, so don't wait! Here's more information from the Freelancers Union

You're also eligible to apply for Pandemic Unemployment Assistance (PUA),unemployment benefits meant for self-employed people, contractors, and freelancers who have lost work due to the pandemic, including due to caregiving for children not in daycare or school. The PUA program has been extended through September 6, 2021 and includes a $300/week additional federal benefit paid on top of your determined state benefit. The details differ by state, but you can check them out at the Freelancers Union website. The Freelancers Union page itself hasn't been updated for 2021 PUA guidelines or guidance, but the links to individual states' information mostly work and have the latest.

These programs greatly depend on a freelancer's individual circumstances—the Freelance Committee cannot advise you directly on your finances, but please seek out the advice of a tax professional or financial advisor and take advantage of these programs if you can.

The Pro ACT and What it Means for Freelancers

Recently, the House passed the PRO Act (H.R. 842 Protecting the Right to Organize Act of 2021). This legislation is described as a bill that protects workers' right to organize, but there’s an issue, the inclusion of the ABC Test, that is of particular concern to freelancers—and the editors and publishers who hire them.

There’s a lot of conflicting information about what the PRO Act does and does not mean, and also whether it will or won’t pass the Senate. Supporters of the legislation say the proposed ABC Test will only apply in cases where workers seek the rights to organize or collectively bargain under the National Labor Relations Act (which the PRO Act serves to update).

Critics say the test is too outdated and that it could be easily misapplied to employment situations outside the PRO Act, which could again prove devastating to freelancers and the outlets who hire them across the nation. And, they argue that there are better ways to distinguish exploited gig economy workers from those who choose to be independent contractors, including using the more nuanced IRS test. Many of us worry that what happened in California with its AB5 labor law, which included the ABC Test, will be played out on a national level.

The bill is now with the U.S. Senate, where it will likely need 60 votes to pass. Freelancers in many areas including independent screenwriters, photographers, songwriters, models, accountants, and financial advisors are most concerned because the legislation uses the ABC Test to define who is an employee and who is an independent contractor under the PRO Act’s provisions. Under the ABC Test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions: • The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; • The worker performs work that is outside the usual course of the hiring entity’s business; and • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

The second point above ("Prong B") is proving most worrisome to freelancers because it would mean that a company whose product is news and content would not be able to use freelancers as independent contractors to produce news and content.

That California’s AB5 included the ABC Test proved devastating for many freelancers. The state legislature had to pass another law to add multiple exceptions and carve-outs for many types of freelance workers. There are no such exceptions in the PRO Act.

The issue is far from settled. Majority leader Senator Charles Schumer said in a blog post that the ABC Test will not be part of the Senate bill, but President Biden campaigned on including the ABC Test.

The issue is also complicated. While several professional organizations, such as ASJA and the Author’s Guild, support the rights of workers and their proper classification, they also worry that the PRO Act as it is written could prevent freelance journalists from working independently and earning a living.

In a recent post, the ASJA writes, “In this context, the American Society of Journalists and Authors, Inc. opposes legislative efforts to restrict the ability of independent writers to work as they choose without governmental interference. ... The American Society of Journalists and Authors, Inc. opposes the use of the ABC Test to classify workers in this and other legislation.” We encourage freelance members, as well as editors who work with and depend on freelancers, to reach out to their Senators, the sponsor of the bill, Senator Patty Murray (D-WA) and Senate Majority Leader Chuck Schumer (D-NY) to explain how the ABC Test could affect your work as a freelancer or editor.

You can find additional information from these resources:

https://www.authorsguild.org/industry-advocacy/the-pro-act-and-the-abc-t...

https://asja.org/faqs-anti-independent-contractor-laws

ASJA President’s statement in full

https://blog.freelancersunion.org/2021/03/12/the-pro-act/

You can see a list of all the Senators who are sponsoring the PRO Act here (scroll down to bottom): https://www.baldwin.senate.gov/press-releases/baldwin-introduces-pro-act...

Mar. 16, 2021

Nobel Prize Summit virtual event